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A New York state appeals court has ruled that a woman may sue for emotional suffering caused by alleged medical malpractice that caused her baby to be born with serious defects. The Appellate Division, 2nd Department, expanded on a recent decision by the Court of Appeals to allow damage awards for malpractice that leads to miscarriages and stillbirths. The appeals court Monday unanimously reinstated claims in Sheppard-Mobley v. King, 2003-00782, on behalf of Karen Sheppard and her son, Jo’ell Sheppard-Mobley. Sheppard alleged that her doctor gave her bad advice and administered an abortion drug improperly. When she learned she was pregnant in July 1999, Sheppard was told by her doctor that she would probably be unable to carry the child to term because of fibroid tumors in her uterus, Justice Stephen G. Crane noted in his decision for the four-judge panel. Sheppard was advised to undergo an abortion, and a fertility specialist told her injections of a drug, methotrexate, which breaks down fetal tissue, would be preferable to a surgical abortion. The drug was administered, and a radiologist who later performed a sonogram told Sheppard there was no fetal heartbeat, the decision said. However, the dose of methotrexate was allegedly too small, and when her doctors discovered that she was still pregnant, Sheppard had to decide whether to undergo a late-term abortion in another state. She chose to give birth to the child. Sheppard, her husband and their child brought a medical malpractice action. Justice Joseph S. Levine in Brooklyn Supreme Court granted the defendant doctors’ motion to dismiss Sheppard’s claim seeking to recover for mental anguish. He noted that she had suffered no physical injuries. The court also dismissed claims on behalf of the child, citing New York’s rule that there is no recovery for “wrongful life.” BROADNAX DECISION While the family’s appeal was pending, the Court of Appeals overturned a 19-year-old precedent and held that a woman may recover damages for emotional distress for medical malpractice that causes a miscarriage or stillbirth, even if she did not suffer any physical injuries. Broadnax v. Gonzalez, NYLJ, April 2, 2004, p. 18. The court reasoned that medical professionals owed a duty of care to the developing fetus as well as the the expectant mother. Although Broadnax did not involve a live birth, Crane said there was no reason to limit its holding to those circumstances. “The duty owed to the mother remains the same whether the fetus is stillborn or is born in an impaired state,” he said. “The duty is not vitiated by virtue of the live birth of a child in a severely impaired state.” TRAUMA BEFORE DELIVERY The mother alleged that she suffered emotional harm not only as a result of her giving birth to an impaired child but also for her own pre-birth trauma, the judge noted. “In reliance upon [the defendants'] diagnosis, the mother submitted to a chemical abortion; she was mistakenly advised that it had succeeded when, in fact, it had failed,” he wrote. “Then, she was faced with emotionally-wrenching decisions, including whether to seek an out-of-state late-term abortion, or to try to give birth to a child likely to be deformed due to Fetal Methotrexate Syndrome.” The defendant doctors produced no evidence to rebut Sheppard’s claim that she suffered emotional injuries as a result of the defendants’ alleged malpractice; therefore, the claim must be reinstated, the appellate panel said. The judges also reinstated claims on behalf of the infant, concluding that his claims were for personal injuries he suffered in utero as a result of the defendants’ malpractice in erroneously diagnosing and treating his mother. PRECEDENT FROM 1951 Crane noted that the Court of Appeals had recognized in a 1951 ruling a child’s causes of action for injuries sustained in the womb resulting from a tort committed during pregnancy. “It is now beyond dispute that in a case of negligence resulting in prenatal injuries, the mother and child in utero may each be directly injured and are each owed a duty independent of the other,” he said. Justices Anita R. Florio, Sondra Miller and Reinaldo E. Rivera concurred with Crane’s opinion. Ira Cooper of Davidson & Cohen in Rockville Centre appeared for the Sheppard-Mobley family. The appealing defendants were represented by Lawrence W. Mumm and Timothy J. O’Shaughnessy of McAloon & Friedman, Lisa Gokhulsingh and John Tomaszewski of Marulli & Associates and Steven C. Mandell of Aaronson, Rappaport, Feinstein & Deutsch.

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